Knowles v. State , 27 Tex. Ct. App. 503 ( 1889 )

Hurt, Judge.

This conviction was for the theft of a mare. Though we have carefully considered all the assignments of error, we will discuss only such as we think are of importance.

The charge of the court with regard to the venue was correct. The mare was taken in Gonzales county. This was clearly shown, and if appellant was a principal in the taking, the venue would be in Gonzales county whether appellant was the actual taker or not. The contest, therefore, is back of this. It is whether the proof shows that appellant was a principal. Did he actually take the mare, or was she taken by some other person under such a state of facts as constituted him a prin-cipal? If not, he should not be prosecuted in any county for the theft of the mare, because not guilty of theft.

Opinion delivered at Galveston March 23, 1889.

It is very clearly shown by the statement of facts that Jeff Griffin took the mare, and that appellant was not present when she was taken. Griffin is also indicted for the same theft. Elkins not only swears positively that he sold the mare to appelant, but that “Jeff Griffin told him that he was getting up stock for defendant, and he (Elkins) gave him authority to get any of his stock that he found on the outside.” These are the facts bearing on the issue of principal vel non.

There is no proof that appellant and Griffin or any other person had conspired to steal the mare. It is not shown that appellant advised or commanded Griffin to steal the mare, and, if there was such proof, then there is no proof that the appellant, at the time the mare was taken, though not present, was doing any act whatever in furtherance of the .common purpose. It is not even shown that appellant knew that Griffin was going to get up the mare and bring her to him. The proof fails to show that he knew that Griffin had taken the mare until she was delivered to him by Griffin in pursuance to instructions given him by Elkins. With such a dearth of testimony bearing upon this issue, principal vel non, we can not sanction this conviction.

While the charge of the court announced the correct principles relating to principals and accomplices, there was no direct application of these principles to the case in hand. Counsel for appellant in their charge number one sought to make the application, but the court refused the charge. Under the circumstances of this case, we think this was error.

The judgment is reversed and cause remanded.

Reversed and remanded.

[Subsequent to the rendition of this opinion, the Assistant Attorney General filed a motion for rehearing, which was taken under advisement and transferred to the Austin branch of this court, where, on the fourth day of May, 1889, the said motion was disposed of by the opinion which follows. The case is now reported as of the Austin term, but, as the record belongs to the Galveston branch, under the Galveston file number.]

Hurt, Judge.

At Galveston we reversed the judgment in this case with a written opinion by the present writer. In that opinion it was stated that there was no proof that this appellant advised or commanded Griffin to steal the mare, or that this appellant knew that Griffin was going to get up the mare and bring her to him, etc.

It is contended by the State that there is such proof, and we are referred to the testimony of M. 0. West, who testified that appellant stated to him “that all the connection Griffin had with the mare was this,—that he, Knowles, had .sent said Griffin to get the mare for him, and bring her to him.”

The writer understood that this statement was introduced in evidence to prove that he, appellant, was endeavoring to shield Griffin, who was under indictment for the theft of the mare, and not as a confession of facts from which Griffin’s innocence might be inferred. But conceding that this view was not correct, then another phase of the case is presented; that is that the mare was taken by an innocent agent instigated thereto by appellant.

The charge of the court—that part relating to the questio ti of principals—is evidently based upon the .theory that all the parties to the transaction -were guilty participants. The theory that Griffin was the innocent taker at the instance of the appellant, thus making appellant a principal, is not hinted at in any part of the charge; and it is upon this theory that the Assistant Attorney General in this motion contends that appellant is shown to be a principal. The facts failing to show appellant a principal upon the hypothesis that Griffin was a guilty taker, yet, all the elements of theft attending, if Griffin took the mare innocently and was requested to take her by appellant, he, appellant would be the principal and this conviction as principal would be correct. But this view of the case was not presented to the jury in any part of the charge. The jury were not called upon to determine whether or not Griffin was innocent in taking the mare. They reached the conclusion that appellant was a principal from the charge of the court based upon the theory that Griffin was a guilty participant, and not upon the ground that he was an innocent agent. As the appellant stands convicted of theft as a principal, to sustain the conviction the proof must show him to be a principal, and the jury must be correctly instructed what in law constitutes a principal, in all cases in which it is left in doubt as to whether he is a principal or an accomplice. The court properly instructed the jury as to what constitutes a principal upon the hypothesis that Griffin was guilty in the taking of the mare, but failed to instruct upon the theory that he was an innocent agent. This omission in the charge was error of such serious character as to require a reversal of the judgment, and hence the motion for rehearing is overruled.

Motion overruled.

Opinion delivered May 4, 1889.